Parsons v. Rolfe

Chase, J. The mortgage was given by Ellen D. Rolfe, a married woman, to the plaintiff’s testate, December 8, 1877, upon a tract of land in which she had a life estate in her own right, to indemnify the mortgagee against loss upon sundry notes and a bond signed by him as surety for Mrs. Rolfe’s husband, at the request and for the benefit of the husband. The mortgage does not bind her. Laws 1876, c. 82. She was deprived of her co.mmon-law capacity to make such a conveyance (Babbitt v. Morrison, 58 N. H. 419, Thompson v. Ela, 58 N. H. 490) by the second proviso of the act of 1876, that “ no contract or conveyance by a married woman as surety or guarantor for her husband, nor any undertaking by her for him or in his behalf, shall be binding on her.” Buss v. Woodward, 60 N. H. 58 ; Parsons v. McLane, 64 N. H. 478, 479. Although a married woman may be estopped by her acts and covenants relating to matters as to which she has capacity to contract, as if she were unmarried (Parsons v. Little, 66 N. H. 339), her want of such capacity cannot be supplied by estoppel. Penacook Savings Bank v. Sanborn, 60 N. H. 558. The act of July 10, 1877 (Laws 1877, c. 22), explanatory of the act of 1876, was designed to prevent the application of the second proviso in the last named act to property not held in the wife’s own right, such as her rights of dower and homestead in her husband’s property. Judgment for the defendant, Mrs. Rolfe. Smith, J., did not sit: the others concurred.